This article has been written by Yash Dodani, a second-year at NALSAR University of Law. He has tried to set a distinction between ‘Offer’ and ‘Invitation to offer’.

Introduction

Contract is an area where the parties bargain with each other on terms and conditions and then have an obligation to work according to the conditions in the contract. It’s a private law where the role of the judiciary is very limited, not a law like Criminal law or taxation, where the role of State is very high. But still, the role of the state is there, as always will be in any law.

There was a confusion with regards to what is an offer and what exactly is ‘invitation to offer. And as always, the judiciary is called the interpreter of the law for some very important reason and that reason is to clarify the things as and when required. To this also the courts have given a very beautiful difference through many case laws on this front. Let me first get through the individual meaning of these terms and then set a distinction.

Offer/ Proposal

Offer or as it is said proposal has been defined in section 2[a] of the Indian Contract Act¹ as under:

“When one person signifies to another his willingness to do or abstain from doing something with a view to obtaining the assent of the other to such an act or abstinence, he is said to make a proposal”.

It means that when a person says something to another that he would do something or not do something, with a view to get an assent from the other person, he is said to make an offer to the other person. For instance, A, a party says to another person X that “I would buy your cycle for a sum of 6000 rupees”. If after negotiation, both the parties agree on the sale and the price, this would become an agreement and I made an offer by saying the above line quoted.

When an offer is accepted, it becomes an agreement. In an agreement, there is an intention to create legal obligations generally. But this is not always true [see Balfour v Balfour ²] due to the nature of the relationship between the parties. If the nature of the relationship between the parties is such that the agreement would not be intended anywhere to be legally binding, that it will not be legally asked to complete. However, this position is not followed in the Indian Context. If there is an agreement which is not unlawful or illegal, the agreement will be enforced even if there was no intention to create a legal obligation. [See CWT v/s Abdul Hussain Mulla Muhammad Ali³]

There are other conditions of an offer and in what cases the offer can become an agreement like knowledge of offer and other such things but I will not go into the details of these things in this article. It will focus more on the distinction between an ‘offer’ and ‘invitation to offer’.

General and Specific Offers

Offer can be ‘general’ or ‘specific’. In an earlier judgment, the English courts have said that the offer can not be ‘general’ [See Weeks v/s Tybald ⁴]. But after a century or so, the courts said that the offer can be in ‘general’. In Carlill v/s Carbolic Smoke Ball Co ⁵, the court recognized that ‘an offer can be made to world at large as well. Whereas ‘specific offer’ means that an offer which is made to a specific person(s). There can be more than one specific person involved in a contract.

Invitation to Offer

When it comes to ‘Invitation to offer’, it is not necessary that parties do have an intention to enter into an agreement. It’s upon them whether to enter or not into an agreement. It can be said as a pre-negotiation stage before an actual offer. The best example to explain it in the shop. The goods displayed in a shop might not be on a sale, but as they are on display, it doesn’t mean that they are up for sale. The shopkeeper invites the customer to offer that good for sale. It completely depends on the shopkeeper that if they are willing to sell it or not. They are not bound to sell the product at the given price tag. It’s because they have the power to reject the sale, and it is called as ‘invitation to offer’. The buyer will select the best invitation and try to further negotiate on it. In a market condition, an invitation is made by the seller and offer is made by the buyer, if the seller accepts the offer, it becomes an agreement. Intention to enter into a legal obligation is nowhere seen in an invitation, but intention generally matters in an offer.

Finally, when it comes to the difference between, it is very important to discuss the very important case law named Carlill v/s Carbolic Smoke Ball Co. A company made an advertisement in a leading newspaper that it has made a product, the consumption of which will keep away disease such as a cold. If someone after consumption of it as prescribed, will attract those disease, will get a Compensation of 100 Euros. It has also said that to show that confidence, it also deposited the said amount in a bank account. The product was purchased by the plaintiff. After consumption in the said prescribed manner, he suffered from cold and filed a suit for recovery. The company contended that it was an invitation to offer and not offer. They also contended that it was a puff advertisement. But the courts rejected the contention saying that the advertisement is not an invitation to offer but an offer itself because they have deposited the amount in a bank, they do have intention here and hence the offer was accepted when the buyer consumed the product in the said manner. The plaintiff was allowed to get the compensation of 100 Euros.

Conclusion

Thus, it is essential to understand the difference between an ‘offer’ and ‘invitation to offer’. ‘Invitation to offer’ is a step before making an ‘offer’. ‘Invitation to offer’ is given by one party, then on reaction to the invitation, the another party makes an ‘offer’, then it is upon the previous party to either accept or reject it. The person inviting an offer is not bound by any condition which he has specified at the invitation stage.

References

The Indian Contract Act, 1872 [Act 9 of 2873]
(1919) 2 KB 571
(1988) AIR 1417
74 ER 982.
[1892]

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ABSTRACT

The article is written by Naman Jain pursuing BBA-LLB from Bennett University, Greater Noida. This article endeavours to demystify the key concepts of force majeure and the repercussions of Covid-19 on contractual obligations. This article insights into the legal permissibility of this clause in the current scenario and highlights the elements to be considered before the invocation or while defending a force majeure claim.

“LAW AND ORDER ARE THE MEDICINE OF THE BODY POLITIC AND WHEN THE BODY POLITIC GETS SICK, MEDICINE MUST BE ADMINISTERED”
~ DR. B.R. AMBEDKAR

INTRODUCTION

The continuous spread of COVID-19 has forced the country into a conspicuous uncertainty. Global disruptions are evident in the business and commercial sector. A significant population of the world has been put under lockdown. Due to this, operations carried by various businesses have been hindered and fulfilment of contractual obligations has been greatly impacted. The disruptions in the supply chain will lead to delay, interruption, or even cancellation of many contracts. As businesses are making plans to address this international emergency, this article provides guidance to inform strategic decision making in accordance with the contractual relationships. To escape from the contractual penalties arising due to missing project deadlines, non-payment, etc as a result of the pandemic, parties to contracts are bringing word like “Force Majeure” in use.

WHAT IS ‘FORCE MAJEURE’ ?

The French phrase means a “superior force”, is a law U/S 32 and 56 of Indian Contract Act, 1872. Black Law Dictionary defines it as “In the law of insurance, superior or irresistible force. Such clause is common in construction contracts to protect the parties in the event that a part of the contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by the exercise of due care”. It is a provision that protects a party in contractual agreement from liability for its failure to function the contractual obligations. It is an expressed provision in contract law which describes an extraordinary event involving circumstances beyond human control as an act of god or a superior force. Further, this clause frees both the parties from a contractual liability when some specified or uncertain events beyond human control obstruct the carrying of obligations under the contract.

As mentioned in the clause, this exhaustive list contains events like wars, riots, fire, flood natural calamities, lockouts, famines, and govt. action affecting any party to function or perform the pre-decided obligations under the contract cause its frustration or impossibility. The clause provides relaxations to perform the contractual obligations, but it does not entirely excuse a party from a contract. Moreover, it suspends the contract for the duration of that superior force. However, if this superior force continues to dominate for more than a specified period, the clause gives the power to both the parties to terminate the contract without any financial effects on either party.

Force Majeure principle is ruled by chapter 3 of the Indian Contract Act dealing with the contingent Contract. S. 32 of the act defines this Supreme power whereas S.56 is a rule of positive law which mentions about frustration. ‘Impossible’ or ‘Frustration’ is only confined to something which is beyond the control of both the parties and not to the literal impossibility to perform i.e. strikes or commercial hardships as held in the case of Satyabrata Ghose V. Mugneeram Bangur.

The Supreme Court in the case of Naihati Jute Mills Ltd. v. Hyaliram Jagannath held that “A contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events.” The capacity to invoke the clause depends on the nature of the contract as well as the wordings of the contract. Therefore, with respect to the pandemic situations, implications of the above provisions would be dealt by the adjudicatory bodies on case to case basis.

FORCE MAJEURE AND COVID-19

The Ministry of Finance has clarified the doubt stating that disruption in supply and production chains due to the spread of coronavirus has to be considered as a case of natural calamity and Force Majeure clause may be invoked wherever appropriate according to the circumstance and nature of the contract. Many of the contracts are such in India that do not says explicitly to invoke the benefits of Force Majeure clause. Whether a contract on the account of Covid-19 has the capability to invoke the benefits of this clause is a fact-specific determination that totally depends on the nature of the obligations involved and the specific terms of the contracts. If in case the contract formed by the party does not involve ingredients of Force Majeure, then the party can claim under the “Doctrine of Frustration” U/s 56 of the Indian Contract Act, 1872. This doctrine makes the party excusable if the whole contract becomes impossible to perform. ‘Frustration’ and ‘impossible’ are often used interchangeably.

Force Majeure is an element of a contract being strict in nature while the doctrine of frustration is a common law concept.

In the light of the current situation, the lockdown has been imposed in India restricting the performance of some contracts. As the lockdown is imposed by the Govt. and is construed as an order of the Govt. Therefore, the party having the obligations to perform can issue a notice saying that such an event has occurred i.e. lockdown which is beyond its control and therefore, the provisions of Majeure clause can be triggered giving relaxation to the party by suspending the party till the supreme force i.e. lockdown gets over.
Further, the contracts made before lockdown between 2 parties involving advance payment and non-performed obligations which is impossible to execute at this time of lockdown in the purview of S. 56 of Indian Contract Act become void and the party who had paid advanced can claim for a refund as the one who received the payment in advance is bound to pay back the amount.

KEY ASPECTS WHILE INVOKING/DEFENDING FORCE MAJEURE

Keeping a track of the events that would be in accordance with the ingredients of the clause based on the contractual understanding of the parties and the nature of the contract. The list of the above events can be exhaustive or non-exhaustive in nature.
Actions that have to be taken to invoke the Force Majeure clause should be informed prior, with an issuance of notice to the opposite party.
Repercussions of the Force Majeure events, mitigation strategies, relaxations to be provided in performance and issues dealing with suspension or delay of standard quality performance should be analysed thoroughly.
Mindfulness of businesses in knowing that economic hardships i.e. higher cost of performing the obligations under a contract will not be a strong ground to assert Force Majeure clause or Frustration principle as a defence.

In the English case of Tsakiroglou & Co. Ltd. v. Noble Thorl GmbH, the facts comprise of a ship that needs to perform sale of coconuts by transporting it from one place to another. The contract was made but later at execution, it was found that the canal to be used on the customary route was closed. Despite knowing the fact, it was held that the above contract of sale of coconut cannot be considered impossible to perform and hence there was a way for the ship to travel from another passage being 3 times longer than the usual one. Economic hardship that was faced by the ship hence, failed to become a ground for frustration to contract. Therefore, the party failed to get the defence under this principle. The above view of the law was also stated in ‘Chitty on Contracts’, 31st edition. Further, the view of not to trigger Force Majeure clause unless an alternative way is available was evident in ‘Treitel on Frustration and Force Majeure’.

Moreover, legal advisors should be contacted by the parties to have a clear view of the sector they are involved in and the specific events and provisions being invoked to avoid any ambiguity later. Some cases where negligence or malfeasance of a party is seen, those are intended to get the benefit of the above clause. Understanding of the loopholes in law enforcing Force Majeure provisions with the guidance of legal practitioners would help in serving the justice better minimising the misuse of such benefit providing provisions of the law.

OTHER FACTORS AFFECTING FORCE MAJEURE CLAUSE

It would be important to note that the burden to proof of special circumstances, the events under the list of Force Majeure or Frustration principle and the mitigation assurance to be provided is on the party asserting Force Majeure defence. The liability is on the asserting party to prove the existence of Force Majeure conditions. Such clauses are construed strictly by Courts. Force Majeure clause is expressly provided and not implied under the Indian Law. Expressly means that courts will apply usual principles of contractual interpretation as per the scope of the clause to make decisions regarding the protection to be provided to the parties of the contract.

Parties can also attempt to invoke other contractual clauses. For instance, Material adverse Change (MAC) clause, price adjustment clauses, limitation and exclusion clauses to limit or minimise the burden of non-performance. Moreover, the companies can also consider the ramification of non-performance clauses to clarify the liquidity of damages and the amount of compensation for non-performance of contract which is pre-determined and agreed between the parties before making a contract.

REMEDIES

Remedies to the clause depends on the nature of contracts. For instance, some contracts may provide immediate cancellation, or some may put the contract on hold. Some may give leniency in time or in standard quality of performance. In the verdict of Alopi Parshad & Sons Ltd. v. Union of India, it was ruled out that the Indian Contract act does not enable a party to a contract to disregard their expressed statements made earlier and to claim compensation for the non-performance of a contractual obligation which was made at rates different from stipulated rates, on an indeterminate plea of equity. Irrespective of any sudden price hikes or market inflation or deflation, the party to a contract does not itself get rid of the bargain they have made and is liable to perform the obligation until proven in the Court that the above performance is ‘impossible’ or ‘impracticable’.

MITIGATING THE CURRENT CIRCUMSTANCES

With COVID-19 effects all over the globe, Life Insurance companies also have the right to invoke Force Majeure clause and escape the liability of paying the claims to the clients.

TURNING POINT

Insurance companies being private or public, have stated that they will not invoke this clause in cases of COVID-19 related death claims and will process them as fast as possible. This step was taken to assure the premium payers, that the Life Insurance industry is taking every possible measure to mitigate the disruptions and the suffering being caused, due to the lockdown. Further, the company will be providing the clients with maximum digital support to honour COVID-19 death claims in accordance with the “social distancing” rules. A grace period of 30 days is bring provided by the company to pay their premiums. Relaxations in settlements of policy is being given due care and attention to keep the policyholders at ease. All the other special charges are exempted except the fund management charge. Options like partial withdrawal and switching of accounts will be restricted during the settlement period. Other insurance companies will be providing maximum support to cover the loss arising due to special unsure circumstances in the various businesses. Policyholders are falling largely on ‘Force Majeure’ and ‘Act of God clause’.

AROUND THE WORLD

COVID-19 virus arising from the Virus ology labs of China has already made the country to work on the problems arising due to non-performance of Contracts. China Council for The Promotion of International Trade (CCPIT) has already provided thousands of Force Majeure certificates to businesses, relaxing the difficulties in performing the specified obligations of their respective contracts. It is right to conclude that the invocation of the Force Majeure clause has been successful in China. If the clause is a failure to some of the businesses, then those companies can go for the provisions governing non-performance of contract due to impossibility or impracticability also known as ‘Frustration’ to contract as mentioned in the Uniform Commercial Code (UCC) of China.

In India, Department of Expenditure, Procurement Policy Division, Ministry of Finance discharged an Office Memorandum on February 19, 2020, with regard to the Government’s ‘Manual for Procurement of Goods, 2017, which sets out the direction for procurement by the government. Further, it states that COVID-19 could be brought under Force Majeure clause based on ‘Natural calamity’ providing that ‘due procedure’ has to be followed.

CONCLUSION

COVID-19 is having an unforeseeable impact on businesses and the companies. It has restricted the parties to perform their contractual obligations, leading to a decline in the economy. As discussed in detail, Force Majeure is an express provision and invoking it for the purpose of invocation or as a defence, depends on the nature of a contract, impossibility to perform, alternativity to perform and various other circumstances that are different in different cases and would be assessed by the Courts on a case by case basis. Contracting parties must go through the language of the contract so formed by them and the various provisions regarding them. This would help in determining the plausibility of their success. Presently, massive challenges are being faced by the society. The hope for everyone is that the wrecks of COVID-19 will go by swiftly.

REFERENCES

https://www.bloombergquint.com/opinion/coronavirus-key-legal-issues-for-india-inc-with-covid-19
https://www.wsgr.com/en/insights/covid-19-and-force-majeure-clauses.html
https://amlegals.com/covid-19-force-majeure/
https://www.mondaq.com/india/litigation-contracts-and-force-majeure/918092/time-it-or-time-out–force-majeure
https://www.business-standard.com/article/companies/life-insurers-will-not-invoke-force-majeure-clause-for-covid-19-claims-120040601452_1.html
https://www.lexology.com/library/detail.aspx?g=d63bbf8d-64ec-4595-ab87-633934115ab0

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.

Essential ingredients of the section are

Taking or enticing away a minor or a person of unsound mind by someone
Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’ embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

Forcible compulsion or inducement by deceitful means.
The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

In Kidnapping, the means used are irrelevant.
In Abduction, means of force, compulsion and deceitful means are used.

Consent

In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
In Abduction, person condones the offence of abduction.

Continuity of crime

Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

PSA Pillai 13^th Edition
K D Gaur 6^th Edition
NCRB report 2018

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This article is written by Sharat Gopal pursuing BA.LL.B from Delhi Metropolitan Education, GGSIPU. He has discussed the legal provisions that govern the corporate while giving loans, guarantees, securities or making investments.

Introduction

Before discussing about inter-corporate loans, it is important to understand what ‘corporate’ means. ‘Corporate’ literally means “a large company or group”. ‘Company’ in literal term means “commercial business”. There is a difference between ‘corporate’ and ‘company’. The main difference between them is the size. ‘Corporation’ is big business or entity whereas a ‘Company’ is a small business or entity.

In the business world, both the terms are treated alike, it is just the size that draws a line between the two.

Now there are some basic characters which all corporate companies possess, that is –

It is a legal entity and has all the rights and responsibilities that an individual has. It has to pay taxes, it can enter into contracts, it can file lawsuits and lawsuits can also be filed against it.
It has a board of directors who decide all the actions of the companies.
As a business entity, it has a separate existence from its owners.
Ownership of the company is divided into share know as “corporate stocks”, and the people who own them are called shareholders.

Company

The Indian Companies Act was amended a lot of times. The last amendment was made in 2013, and it is in current use. The Companies Amendment bill 2019 was introduced in Lok Sabha on July 25^th, 2019, which brings more changes to the act. As of now, the 2013 amendment is in use.

Section (2)(20) of the Indian companies act states the definition of “company”. It states that “company” means a company which is incorporated under this Act or any previous company law.

Every company has a board of directors, who take decisions for the company. As a company doesn’t have a natural existence, but has a legal existence. Therefore all the decisions of the company are taken by this board of directors.

Inter-Corporate Loans and Investments

For the better functioning of the companies, section 186 of Companies Act, 2013 was introduced. It brought a few modifications and changes in the concept of Inter Corporate loans and Investments made by the company. This act makes it clear, which company can or cannot give loans, security, or make investments.

When a company provides loan, security or guarantee to another company, it is known as inter-corporate loans. When a company invests in another company, it is known as inter-corporate investments.

A firm can provide loans, investments, guarantees or securities to other companies only after the board of directors have given consent to it.

Legal status

Section 186 of the companies act, 2013 deals with the loans and investments made by the company. Section 186(1), states that a company can make investments through not with companies more than 2 layers of investment companies.

Now “layer” is defined under section explanation (d) of section 2 (87) of the Companies Act. It states that “layer” in relation to a company means its subsidiary or subsidiaries.

Investment Company is a financial institution, whose primary activity is investing in securities. The principal business of an Investment Company is:

buying of shares
buying of debentures
buying of other securities

Cases where provisions of section 186(1) won’t affect:

When a company acquire any company which was incorporated outside India and that company had Investment subsidiary beyond 2 layers.
A subsidiary Company from having any investment subsidiary for the purpose of meeting the requirement under any law or under any rule or regulation framed under any law for the time being in force.

Others places where section 186 (1) is not applicable-

Section 186 (1) is not applicable to, Housing Companies, Insurance Companies, etc.
Companies whose primary business is buying and selling of shares, or security etc.
Companies acquiring shares on right issues basis, which is explained in section 62 (1)(a).
Government companies that operate defence production
Unlisted companies which are legally authorised by the govt authorities.

Amendments to the Act

Before the amendment of 2013, the Companies Act of 1956 was followed. Act of 1956 had a lot of problems, which were solved after the 2013 amendment. Section 372A, of the Companies Act 1956 dealt with the Inter Corporate Loans, Investments, Guarantee, Securities. After the 2013 amendment of the act, section 186 was introduced, this stated that there cannot be inter-corporate investments through more than 2 layers of investments. This was not required before the 2013 amendment. This restriction was used to keep a check on the misuse of multiple layers of subsidiaries for diversion of funds.

The act was amended again in 2017, which brought changes to section 185 and 186, which deals with loans to directors. With these modifications to the act, it was now more convenient for businessmen and investors to do business.

Section 186(2) talks about giving loans, securities etc. It states that no company shall directly or indirectly –

Give any loan to any person or other body corporate.
give any guarantee or provide security in connection with a loan to any other body corporate or person
and acquire by way of subscription, purchase or otherwise, the securities of any other body corporate

Which would be exceeding, 60% of its paid-up capital, plus free reserve, plus security premium account or 100% of its free reserve, plus security premium account, whichever is more.

Free reserve are the reserves which are there as per the latest audited balance sheet of the company.

Body corporate means a company corporate outside India, but should not be a corporative society which is registered under any corporative societal laws or any other body corporate not being defined under Companies Act or any authority.

Individual does not include a person who is underemployment of the same company.

Requirements mentioned in Section-186, Indian Companies Act

There are some criteria’s to be followed for having inter-corporate loans and investments. These are also mentioned in section 186.

Approval from members is mentioned in section 186(3). It states that the company can give loans beyond the restriction imposed in section 186(2), but only after prior approval by the members by special resolution passed at a general meeting.
Section 186(5), states that no loan or guarantee or security should be given by the company, until and unless it is sanctioned by the board of directors.
Section 186(4) states that the company has to disclose all its financial statements for loan given, an investment made, guarantee given, to all the members. Such disclosure should be in the board’s report also.
Section 186(6) states that no company which is registered under section 12 of Securities and Exchange Board of India Act,1992 and covered under such class or classes of companies, shall take inter-corporate loan or deposit, exceeding the prescribed limit and such companies must provide its financial statement in detail of the loan.
Section 186(10) states that every company must maintain a register which has all the details of loan given, guarantee given or security provided or investment made. This register must be open and shall be provided if demanded by the members on payment of fees prescribed.
Section 186(7) talks about the interest rate of the loan given. It states that no loan should be given below interest rate which is lower than the prevailing yield of 1 year, 3-year, 5-year or 10-year government security closest to the tenor of the loan.
Section 186(13) talks about the punishments imposed when there is contravenes in the provisions provided in the act. It states that if a company contravenes the provisions of the act, then the company is liable for a penalty not less than ₹25,000, which may also extend to 5 lacs. If an officer is at fault then he is liable for imprisonment for a term which may extend to 2 years and fine of ₹25,000, which may extend to 1 lac.

Summary

The above article explains the legal provisions by which inter-corporate loans are governed. It basically gives guidelines, how loans, guarantees, securities are given to other companies. This act also punishes companies and people, if they do not follow these laws.

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The following article has been submitted by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light on the importance and applicability of social media posts being treated as viable evidence in a court of law.

Introduction

As the world continues to plunge itself deeper and deeper into a marginally digital stratosphere, there’s a highly apparent state of transparency that remains building up constantly around all of its residents. The distinction between public and private grows thinner and thinner, based not just on personal preference, but also on the basis of external, and even lawful engagement. In-built GPS devices & online monetary transactions are regularly tracked and traced within the ambit of evidential data; with the evasion of such monitoring constituting a tort, even. India remains no exception to this gradual but steady uprising, especially now that it stands in the midst of a Prime Ministerial tenure that heavily relies upon striving to achieve, “Digital India.”

As far as maintaining transparency is concerned, the entire construct of Social Media has contributed to the phenomenon immensely ever since its advent. With a huge amount of citizens sculpturing their daily life into aesthetic presentations on public feeds via application-based websites such as Facebook, Instagram and Twitter, one might as well throw principles of personal privacy and self-containment out the window. It is an obvious assertion at this point, that social media has transcribed itself into a platform that goes beyond fulfilling mere recreational purposes: and in extension of that notion, this article shall majorly focus on its impact on the Indian Law of Evidence.

How does data shared on Social Media constitute potential Electronic Evidence?

The information we put into social media accounts is indefinitely stored and available for future access, and therefore, it’s not far-fetched to see how something that starts off as a simple text exchange between friends can be transformed into e-Evidence within court proceedings. The addition of legal sanctions such as Section 69 of the Information Technology Act, 2000, have ascertained a certain amount of freedom to legal authorities for garnering information stored across social media platforms and consider them as evidence after ensuing due diligence to certain procedures established by law. In a nutshell, our judiciary has come a long way from relying solely upon willful oral and written admissions that could be accounted for only after the opening of a particular court proceeding. Electronic evidence has enabled the courts to take reliable past records into account, as long as principles of Justice, Equity and Good Conscience are adhered to.

The evidence obtained from Social Media platforms is applied in a two-fold manner within litigation: The discovery and value of particular messages and social media “posts,” as well as the admissibility of such articles during the trial.

As far as the evidentiary value of social media posts is concerned, there are distinct advantages as well as suitable policy reasons attached to using social media evidence in criminal proceedings. There’s a ton of data being transacted into digital spheres of social media, and such data may even include imagery related to a crime in progress, or even one that has already been commissioned. The most recent example of the aforementioned would be the “Bois Locker Room” incident, wherein a large number of teenagers were exposed after promoting rape culture on an Instagram group that involved sharing pictures of minor girls without their consent. Screen-shots of their conversation on the group as well as on other social media platforms surfaced all over the internet and just that sufficed to launch a proper inquiry against all those recorded partaking in these vulgar & highly offensive discussions. The case is still heavily under investigation as more such records keep surfacing now that the issue, in general, has garnered a large amount of attention. In hindsight, the investigating agencies also discovered how some of the screenshots were, in fact, maliciously manoeuvred into placing false allegation on some of the accused. If anything, that only lays insight to how the scrutiny of potential electronic evidence is crucial, as, in comparison to oral and written admissions, it is fairly easier to stage evidence records on social media platforms.

Domestic events such as this are not the only object of interest when it comes to considering social media posts as suitable evidence. In 2016, there was a report of investigating agencies being in the process of targeting messages posted by individuals on various platforms of social media as evidence against those arrested for supporting terrorist groups. Even the United Nations has laid down guidelines wherein it liberates countries on usage of viable tactics in order to curb terrorist activities carried on over the Internet. However, as mentioned before, it is highly necessary to apply due diligence while exercising reliance upon social media-based evidence: which can be ensured by examining their admissibility in court.

The Supreme Court in 2018 had already voiced its clarification on Section 65B of Indian Evidence Act, which specifically deals with admissibility and applicability of electronic evidence within court proceedings. A bench of Justices A.K. Goel and U.U. Lalit related how the provisions must be applied in a manner that ensures certification of such evidence by the person presenting it himself.

Section 22A of the Indian Evidence Act also relays a detailed account on the screening process involved in the admission of all online articles, messages and posts for their admissibility in court. Even in accordance with Common Law, it is necessary to remain ethical in conducting an investigation of social media articles before any litigation process can be commenced. For example, breaching privacy or adding someone as a friend on social media platforms, just for the sake of gaining private information is highly unethical and such conduct can even render any social media evidence obtained through it inadmissible.

However, the Apex Court also said that the applicability of requirement of certificate being produced, “can be relaxed by Court wherever interest of justice so justifies.”

An important case concerning the admissibility of social media posts in a court of law is Zimmerman v Wels Market Inc. The court recognized access to certain private content as relevant and crucial to the case, based on public information displayed on the plaintiff’s Facebook page and thereby ruled in favour of the defendants who were then granted access to non-public segments of the aforementioned social media handle.

Social Media Evidence: Boon or Bane?

In conclusion, it’s difficult to ascertain whether any information obtained through social media platforms should continue to play a vital role in constituting viable evidence within a criminal proceeding. However, based on recent occurrences, it can arbitrarily be said that if obtained through proper scrutiny, social media evidence can and should definitely be used to validate a person’s claim in court – and in that regard, their impact on Law of Evidence remains both uncertain and positive, but surely detrimental.

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This post is written by Anushree Tadge, 3^rd year law student of ILS Law College, Pune, she tries to explain briefly what a test identification parade is and how it makes a significant contribution in the criminal law system in India.

INTRODUCTION TO TEST IDENTIFICATION PARADE

In Criminal trials, the most important step to follow as soon as the accused is arrested is confirming whether the accused is really the ‘accused’ as far as the crime scene is concerned. This test is extremely popular and is used as a means to examine the accuracy of the witness’s ability to identify the suspect amongst other unknown persons. Test identification parade is an effective tool in the investigation and with the correct procedure, it can be made admissible as evidence in the courts (corroborative evidence), the purpose is mainly to test and improve the credibility of existing substantial evidence in the case.

PROVISIONS AND ADMISSIBILITY

Section 9 of the Indian Evidence Act allows identification of the accused by the process of Test Identification Parade as well as the proofs to be all admissible in the courtroom, now it has to be understood that this ‘test’ is not compulsory to be conducted, the section 54 (a) of The Code of Criminal Procedure grants the process to allow the suspected to be presented for a test identification parade.

Very interestingly, Article 20(3) of the Constitution of India states that no person should be forced to be a witness against his own self, such principle is not violated with the test identification parade, this means that appearing for a test identification parade does not necessarily mean giving testimony in the Court of Law.

Such type of parade conducted for the purpose of identification in the investigation cannot be considered as substantial evidence it rather is taken up as corroborative evidence to support other facts and circumstances found in the case and used in the arguments to frame the ‘accused’

PROCEDURE AND PRECAUTIONS

Procedures: Most importantly, the parade should be held as soon as possible, so that the victim or the witness doesn’t forget about the details essential for identification, as soon as the suspect is arrested the parade should be conducted. Delays are not taken positively in such cases by the courts of law. The magistrate should accompany the police when a test identification parade is carried on. The identifier should identify in both, the test identification parade as well as in the court. Also, the procedure should also take into account that the accused does not know the witness or victim before the commission of the crime, and the identifier must have observed the person for some time so as to identify him/her later on and in a sufficiently lit area.

Precautions: The police should make sure that they leave the place in order to the identifier identifying the person properly without haste, after making the required necessary arrangements, Except for the magistrate and identifier, they are allowed to be in place. For accuracy of results, a similar person to the accused must be made present along with the others and accused in a test identification parade ( Ratio minimum 1:5 and 1:10 ). Other witnesses are not allowed to be present during the process of one parade and are supposed to be kept far away from the identification parade. Also, precautions have to be taken that the accused changes positions after every witness identification takes place.

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

Test Identification is usually necessary when the disputes are concerned with that of the identity of the accused, in cases where the victim never saw the accused in his/her life before the incident. When the victim experiences the act of crime and can identify the accused, a test parade is to be conducted, usually, in such cases, victims can observe the criminal but identify him at a later stage. Even keeping this in mind, the parade should be held as soon as possible and that too with the presence of the magistrate.

Test identification is not required in cases where both witness and accused are acquainted with each other as they live nearby or even closer. Test identification is done to support the existing evidence and confirm the genuineness of the same.

Also, if any form of other evidence is brought to the Court’s attention which the court can safely rely on and in doing so no party will have the right to question or even initiate the parade then it will is not be considered as any substantial evidence and even if the test is not performed admissibility of evidence in court in court shall not be affected.

CRITICAL ANALYSIS

The credibility of this kind of test by the identifier with respect to the test identification parade, the credibility of such test vary from situation to situation and case to case. Many a times if the victim comes in a face to face contact may register a deep scar in the mind of the victim, they might remember the person and the act committed, place and even number of people involved. Factors like if the act was done during the day time? If it was in an open place, was there enough lighting for the identifier? All come into consideration…

In incidents where people covered their faces, the identification is not considered to be suitable as the identifier cannot identify the person, as well as in a situation where there lies a very huge difference in the commission of the act and the test to be conducted, it is generally the view of the court that it will further decide whether the parade should be held or not depending on facts and circumstances of the matter.

CASE REFERENCE

In Raju Manjhi v. State of Bihar, the landmark case, the court stressed upon how the holding of test identification parade was not mandatory. The judgement was delivered by Hon’ble Mr Justice N. V. Ramana and Hon’ble Mr. Justice Mohan Shantanagoudar. On a regular night of 1999, around twelve people below 26 years committed the act of robbery into the house of Kamdeo Singh After the investigation started, many witnesses were found, although, during the test identification parade, no identification was done by the witnesses. The Court held that the identification test is conducted in a particular case only to help and support the investigation officer in a more accurate way. Now there is no provision mentioned in the Criminal Procedure Code which paves way for the investigating agency to hold or give any right to the ‘accused’ to demand the parade by any chance. Any failure to hold the parade would not make the evidence to be inadmissible for identification in Court.

IDENTIFICATION BY PHOTOGRAPH?

Section 22 of the TADA- Terrorist and Disruptive Activities (Prevention) Act, 1987 states that: If a particular person is proclaimed to be the offender in any terrorist case, the evidence related to his identification by any witnesses on the basis of a photograph shall be as binding as the evidence of the parade.

IDENTIFICATION BY VOICE?

In the case of, Mohan Singh v. State of Bihar, it was held that identification of the accused by his/her voice was reliable as prior to the happening of the incident, the witness has had some kind of acquaintance with the accused.

CONCLUSION

Since the procedure of test identification parade in India is already a sidetracked one and it does not even amount to substantive evidence, it’s an effect in the case proceedings is only as much as a ‘dot connector’. But it is strongly recommended to police officers that procedures regarding the parade and the specific course of any action to the investigating authorities must be clearly explained. The government should increase the number of features for more effectively conducting the test identification parade, places should be allotted, tinted windows, better interrogation, and facilities so that concerned persons can see what’s happening instead of only the magistrate, etc. For over a century now, test identification parades have been active in India, and they significantly contribute and help the investigation faster and solve the cases in a better and faster way.

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the legal basis for a lockdown. He has examined the Epidemic Diseases Act and the Disaster Management Act at length with regards to the topic. To conclude he has looked at the factors to be improved so that we can better prepare for the next pandemic.

INTRODUCTION

“Unprecedented events call for unprecedented moves”. This statement has been the entire basis of the lockdown which began on 24^th March 2020 and is still continuing. The lockdown began as an initiative to counteract the Corona Virus which was named as a global pandemic by the World Health Organization (WHO). Before the lockdown, the prime minister imposed a Janta curfew on the country where people were restricted from coming out of their homes and which gave a flavour of how the next few months will turn out to be. In this article, we are going to be examining the legality of imposing a lockdown. An interesting fact about the lockdown was that after about a century the Epidemic Diseases Act was initiated to counteract the virus and provide steps to be taken by the government to impose the lockdown. Another act that played a key role was the Disaster Management Act (DMA) of 2005.

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005

The DMA 2005 defines a disaster as:

a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.

According to this definition natural disasters such as earthquakes or tsunamis are included but instances such as epidemics or a virus breakthrough aren’t. This essentially means that the state couldn’t have imposed a lockdown under this definition. But the state classified the epidemic as a notified disaster which opens up the opportunity to classify it as a disaster and also provide assistance to the victims and states under the State Disaster Response Fund (SDRF).

After announcing the lockdown, the government provided states with an action plan of how the lockdown would play out. This was done by the government pursuant to section 10 of the DMA which reads:

The National Executive Committee shall assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster management in the country. The section also provides for the steps to be taken by the central government to handle the situation which are as follows:

Act as the central agency for making disaster management pans and ensuring execution.
Inform different ministries of the plan ahead
Monitor the implementation of the plans etc.

There are many more initiatives and the authority responsible for executing these actions is the National Executive Committee which will be headed by the secretary to the government of India who has administrative control over the disaster management branch. This will also include officers from different ministries of the government including water, sanitation etc. who are going to be affected during the time of a disaster. The plan of action on how the executive committee will function and their powers and responsibilities will be dictated by the central government.

EPIDEMIC DISEASES ACT, 1897

In a situation where there is no explicit law in place, the diseases act made the lockdown legal as per section 2-A of the said act. Section 2-A of the act reads:

When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Thus, the use of this act was extremely important with regards to the lockdown because as per this section there are two ingredients to be fulfilled

When the central government is satisfied that India is affected by an epidemic or a disease which cannot be controlled or which is spreading at a rapid pace. This was well satisfied as the Corona cases slowly started climbing in the middle of February.
There was no law or provision in place to handle such a situation because the last epidemic of this scale had occurred a century ago which was popularly known as the Spanish flu.

Hence with these two provisions being fulfilled the Epidemic Diseases Act, 1897 was used to impose the lockdown.

CONSTITUTIONAL PERSPECTIVE

There were many lawyers and jurists who pointed out that the term “Lockdown” has nowhere been defined under the Indian Law. Though there was no provision which defined this term the government was using the term as a means to restrict people’s freedom under article 19(1) of the constitution. But as seen above the imposition of the lockdown was under section 2-A of the diseases act which means there was a statutory basis for imposing the lockdown.

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES

The fundamental problem attached to any health emergency in the country is that the term “national calamity” has not been defined anywhere in any provision. There were efforts made by the government in 2001 to come up with a definition and insert it as a statutory provision but the committee responsible could not arrive at a decision. There is a growing need for this definition as it has been requested by the states a number of times. In fact, in 2013 when the Uttarakhand floods occurred the state government requested for enabling the provision. Another request was made in 2018 when the Kerala floods took place and the politicians in the government asked for the definition. Now the need has again risen for a definition and this should be the foremost objective of the government once the epidemic is resolved.

Another aspect is to revamp laws that were made more than a century/decade ago. The Epidemic diseases act and the Disaster Management Act need some categorization of a national fund. They also need to take into consideration new steps to be performed once there is a virus outbreak. There needs to be specific laws in place to administer medical treatment on patients and to provide medical aid in the times of a crisis.

“If all these steps are followed, we are looking at a situation where the world will live to see another day.”

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This article has been written by Ritika Sharma, pursuing B.A. LL.B from Vivekananda Institute of Professional Studies, GGSIPU, Delhi. In this article, the concepts of absolute liability and strict liability has been discussed along with the differences of the same.

INTRODUCTION

The law of tort has been originated from the whole concept of English Common law. It has its roots within the same. The law of torts is actually the civil wrong which leads to civil damages. Since this law is not codified, it becomes important to rely upon the precedents and jurisprudence in order to understand these principles. There have been numerous notions which have been confusing and require a deep and clear understanding. The general rule of tort liability is that the person who causes damage should pay and should compensate. In some cases, the liability is raised on the third parties as well.

However, most of the principles of the law of torts originate from English common law while Indian courts have been successful in modifying the same to meet basic requirements. The two principles of absolute and strict liability are the ones which levy liabilities on the industrial and business aspects when there are commercial activities which actually cause the damages to the public.

STRICT LIABILITY

The rule of a Strict liability provides that if there is any commercial activity which can prove to be harmful; the same should not be carried on. The liability arises even when all necessary and essential precautions are being taken in order to prevent the damage.

The Strict liability is not just a concept but it is actually an imposition of liability on a party without a finding of fault and claimant need only prove that the tort occurred and that the defendant was responsible. The law of torts implies the strict liability rule to such situations wherein the conditions seem to be inherently dangerous.

Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions and infect permissions allowing such activities often include this principle as a pre-condition.

In the leading case of Rylands v. Fletcher, the Rule of Strict liability originated. The defendant owned a mill and to improve the supply of the water, he arranged a reservoir over there. The water escaped and damaged the mine of the plaintiff. The court disagreed upon the argument that the defendant was not at fault and explained the rule of strict liability. It said that when somebody keeps something on his property for his benefit, it should not escape and in case it escapes, the owner of that thing must compensate the victim even if he was not negligent.

In the case of the Meghalaya Energy Corporation v. Shri Sukendra Sangma, the court did not recognize the rule of strict and absolute liability in case of this enterprise which was engaged in hazardous and dangerous activity which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

ABSOLUTE LIABILITY

Absolute liability refers to a standard of legal liability which is found in tort and criminal law. In order to convict someone for an ordinary crime, a person should not only have to commit a criminal action but it is required to have a deliberate intention which is mens rea. A company is required not to engage in such activities which can prove to be extremely hazardous. In such cases, this type of company or any person engaging in such activity have to pay compensation as a mandatory remedy, whether or not such disaster was caused by its negligence.

The Supreme Court, in the M.C. Mehta vs Union of India, found that the principle of strict liability is inadequate in order to protect the rights of citizens and it replaced it with the principle of absolute liability principle. The incident of leakage of Oleum gas from a fertilizer plant of Shriram Food and Fertilisers Ltd. complex at Delhi caused irreparable damage to several people and the due to the prevalence of the concept of absolute liability, there was no defence which was provided to them. Article 21 of the Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law and this specific right is available to both citizens and non-citizens and hence the court wanted corporations to be made fully liable for future undeserved suffering of innocent citizens and held that a hazardous enterprise has an absolute non-delegable duty to the community.

In the case of Union Carbide Company vs. Union of India, which is popularly known as Bhopal Gas leak Tragedy, the Supreme Court held that Union Carbide Corporation, currently owned by Dow Chemical Co, was liable to pay compensation to the victims of the 1984 Bhopal gas tragedy and the curative petition was also denied.

THE DIFFERENCE

The distinction is clear between strict and absolute liability and was clearly mentioned by the Supreme Court in M.C. Mehta v. Union of India, where the court made a summarization as follows:

Only those enterprises shall be held liable, in absolute liability, which are involved in hazardous or the activities which are inherently.
The very escape of a dangerous thing from the person’s own land is not necessary. Absolute liability is applicable to those injured within the premise and outside the premise and the rule of Absolute liability does not have any exceptions, unlike the rule of Strict Liability.
The rule has been elaborated keeping in mind the case of Rylands v. Fletcher as it only applies only to the non-natural use of land, but absolute liability applies even to the natural use of land and if an individual tends to use a dangerous substance and if such substance escapes he shall be liable even though he has taken proper care.
The extent of damages actually depends upon the very magnitude and financial capability of the corporation It was also stated by the Supreme Court that the enterprise should be held to be under an “obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise or the institute must be held absolutely liable to compensate”.

REFERENCES

Franklin, Mark, Tort Law and Alternatives: Cases and Materials, University Casebook Series, ISBN-13: 978-1634593007
Gilead, Israel, On the Transformation of Economic Analysis of Tort Law, Journal of European Tort Law, Issue 3, 2017; Hebrew University of Jerusalem Legal Research Paper No. 17-26
Ryland v. Fletcher, (1868) LR 3 HL 330
M.C. Mehta vs Union of India, 1987 SCR (1) 819
Union Carbide Company vs. Union of India, (AIR 1987 SC 1086)
P. S. Atchuthen Pillai, The Law of Tort, Eastern Book Co, 8 Ed, 1987 [1]
Ratanlal & Dhirajlal, The Law of Torts, Butterworths

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This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. He has tried to define the sources and framing of the Indian Constitution in this article.

INTRODUCTION

Constitution is the system of basic principles which governs a country, state, company, or the like. It is the backbone of our country’s democracy. Indian Constitution is the longest written constitution in the world containing 395 Articles, 22 Parts and 12 Schedules. India’s constitution was drawn up by a Representative Assembly. The Assembly, under the chairmanship of Dr. B.R.Ambedkar, formed a drafting committee to create a constitution for India. The first meeting of the Assembly was on 9 December 1946. On 26 November 1949, the Indian Constitution was adopted and came into force on 26 January 1950.

After ransacking all the world’s major constitutions, the Indian Constitution was formed. The sources of the Indian Constitution are:-

1. United States of America

● Impeachment of president:- Article 61 of the Constitution calls for the President of India to be impeached. The President may be disqualified from office for breach of the Constitution by impeachment. Impeachment proceedings may be levied at any Parliament house.

● Removal of judges:- Article 124(4) of the Constitution allows the President to remove a judge for proven misconduct or incapacity if the parliament approves a majority of the total membership of each house for impeachment and not less than two-thirds of the members of each house present.

● Fundamental Rights: Articles 12 to 32 of the Constitution of India include all the fundamental rights:- Basic rights are the fundamental human rights given to the country’s people in order to ensure them of an equal place in society.

● Judicial independence:- The idea of judicial independence is that the judiciary should be separate from other government branches.

● Preamble:– The Preamble is an introduction to the Constitution. It guarantees justice, freedom, equality for all Indian citizens, and fosters fraternity among the people.

● Judicial Review: The Judicial Review provision gives the judiciary an upper hand in interpreting the Constitution. Therefore, the judiciary can annul any order by the legislature or executive if that order conflicts with the country’s constitution

● Functions of president and Vice president:- The President of India, is the head of state of and the commander-in-chief of the Indian Armed Forces.

● Article 63 of the Indian Constitution states that “There shall be a Vice President of India.” The Vice President shall serve as President in the absence of a President by reason of death, resignation, impeachment or other circumstances. India’s vice president is now ex officio secretary of Rajya Sabha.

2. The United Kingdom

● Single citizenship:- India’s constitution grants the country’s residents single citizenship. The residents of the country are all citizens regardless of the states or territories in which they live.

● Legislative procedure:– Legislative proposals shall be brought in the form of a bill before either Parliament House of India. A bill is the draft legislative legislation that, when passed by both parliamentary houses and approved by the President, becomes a parliamentary act.

● Rule of Law: This essentially states that a State is governed by the laws of that country, not by the representatives or the citizens and it states that everybody is equal before the law; including the ones who make it. Article 14 of the Constitution of India codifies the rule of law

● Cabinet system:- A group of persons appointed by a head of state or a prime minister to head the government’s executive departments and serve as official advisers.

● Parliamentary form of government:- The President is the head of state, and the head of government is the Prime Minister. In such a form of government, a cabinet of ministers, headed by the Prime Minister, governs the country. The Parliament consists of two houses – Lok Sabha and Rajya Sabha.

3. IRAN

● Directive Principle of State Policy:- The Directive Principle of State Policy is stated in Part IV of the Indian Constitution, and it explicitly states that it is the State’s responsibility to follow certain principles in the law-making process. There are three major types of these concepts – Democratic Guidelines, Gandhian Guidelines and Liberal Intellectual Guidelines. Ireland is also borrowing the process for appointing members to the Rajya Sabha

● The method of the election of the head of the state i.e the President

4. Australia

● Article 108:- The joint sitting of both the houses in some cases.

● Concurrent list:- It includes the power to be considered by both the union and state government.

● Freedom of trade and commerce:– Trade and commerce freedom within the nation and between States. Sections 301 to 307 of the Indian Constitution set down the same provisions

5. France:- The Indian preamble borrowed from the French Constitution its principles of liberty, equality and fraternity. In the tradition of France’s Constitution, the Indian state came to be known as the ‘Republic of India.’

6. Canada

● Federal system with a strong central government.

● Power-sharing between the central government and state governments

● The advisory jurisdiction of the Supreme Court

● Appointment of State governors by the Centre

7. Soviet Union (USSR)

● A Constitutionally appointed Planning Commission to supervise the economic growth.

● The Fundamental Duty, given in Article 51 A(g):- Mentions the duty of the citizen to protect the environment.

8. South Africa :- Gave us the provisions of the amendment process and the election of Members of Rajya Sabha

9. Germany:- Gave us an immediate clause for the suspension of the fundamental rights.

10. Russia:- Idea of Social, Economic, and Political Justice in Preamble.

11.Government of India Act 1935

● Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

● Provincial Autonomy:- Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

Framing of the Constitution

India’s Constitution was adopted by a Constituent Assembly formed under the 1946 Cabinet Mission Plan. The Constituent Assembly formed 13 commissions to frame the Constitution. A draft Constitution was drafted by a seven-member drafting committee under the chairmanship of Dr B R Ambedkar on the basis of the reports from these committees. In January 1948, the drafting Constitution was released and citizens were given eight months. After the citizens, the press, the provincial assemblies and the Constituent Assembly had debated the draft in the light of the suggestions received, the same was finally adopted on November 26, 1949, and signed by the President of the Assembly. Thus it took 2 years, 11 months and 18 days for the Constituent Assembly to complete the task. And as I have discussed above the Indian Constitution is borrowed Constitution. The legislative system, common citizenship, rule of law, Directive state policy etc. all are borrowed features of the Indian Constitution. The Constitution of India incorporated the best features of a number of existing constitutions.

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This article is written by Sharat Gopal, pursuing BA.LL.B from GGSIPU. This article discusses about “Burden Of Proof” and its application in the Indian Judicial system with case laws.

Let us understand this with an illustration as B is booked for theft for stealing A’s gold chain. B denies this accusation and claims that he was attending his friend’s wedding, but for proving this in court, B must provide sufficient evidence to the court which proves that he was at the wedding. If B won’t provide sufficient evidence in court, B will be convicted for theft. This legal burden placed on B’s shoulder is known as “burden of proof”. Burden of proof is more of the time on the person who brings the claim in the dispute. “ necessitas probandi incumbit ei qui agit” is a legal maximum which states that the necessity of proof always lies with the person who lays charges.

EVIDENCE

Evidences are the major factor that decides the faith of a case. Cases are won and lost on the bases of evidences provided. Law of Evidence is an important piece in the court proceedings, as on the basis of evidences, cases are decided. Judgments of cases are totally depended on the evidence provided in court.

The term “Evidence” is defined in section 3 of the Indian Evidence Act 1872. It states that “Evidence” means and includes:

All the statements that are permitted in court or statements which are required to be made by the witnesses, in relation to the matter of fact which is under enquiry. These statements are called oral evidences.
All documents including electronic records produced for the inspection of the court. These are called documentary evidences.

This is the definition of evidence explained under section 3 of the Act. It states that there are 2 types of evidence, oral and documentary evidences. These 2 types of evidence must be produced before the court for proving or disproving their arguments. The court analysis these evidences for giving a fair and just judgement.

BURDEN OF PROOF

“Burden of proof”, in simple terms means the duty places on one to prove or disprove a fact which is in question. As it is explained in the above example, where B had the burden to prove that he was at his friend’s wedding when the theft happened. In criminal cases, it is normally the prosecution who has the burden of proof, but in some cases it is shifted to the defendant as in the explained example, to prove his innocence. In civil cases, the burden is usually on the plaintiff to prove the claim, but in some, in some cases, it shifts to the defendant.

Burden of proof works on 2 principles, “Onus Probandi” and “Factum Probans”. “Onus Probandi”, in simple terms means the obligation of a party to provide sufficient proof for their position in a dispute. “Factum Probans”, means a fact or a statement of facts which are offered in as evidence as proof of another fact.

“Onus” is the liability and burden which can shift between parties in different circumstances.

Sections in the Indian Evidence Act covering the concept of Burden of proof-

Section 101- it states that any person who wants the judgement to be given in his favour for any legal right or liability, on basis of the facts he provides, he must prove that those facts exist. When the person is bound to prove the facts that he provided in court, it is known as the burden of proof.

In the case of Jarnail Singh Vs State of Punjab [AIR 1996 SC 755], it was held that in all criminal cases, the prosecution has the responsibility to prove the crime committed by the accused beyond all reasonable doubts. It can’t depend on the evidence brought by the accused for defence. The prosecution cannot rely on the evidence brought by the accused, and it must have its own evidences.

Section 102- This section talks about the person on whom the burden of proof will lay.

It states that the burden of proof will lay on the person who will lose if no proof or evidence is provided in the dispute. Eg, A and B were in contract with each other. B goes to court demanding that, A had obtained B’s consent by fraud. Here B will have the burden to prove the fact that, A fraudulently took B’s consent. If B will not prove this fact, the B will lose the case.

In the case of Dinabandhu Mondal v. Laxmi Rani Mondal [AIR 2019 Cal 232], the high court held that the plaintiff failed to provide any evidence to support their charge and the burden of proof was on the side which will fail in evidence is not provided. The court also said that the respondents had imposed the allegations of fraud against the appellants, hence the burden of proof was on them to prove them negative.

Section 103- this section on Burden as to a fact. It states that the burden of proof of any particular fact lies on the person who wishes the court to believe in its existence until it is provided by any law that proof of fact shall only lie on any particular person.

In the case of Kovvuri Venkata Rama Reddy Vs Mandru Ganga Raju [Criminal Revision Case No.704 of 2018], the Andhra High Court held that the plea of alibi is concerned; the burden heavily rests on the accused to prove it.

Section 104- This section talks about the burden of proving a fact so that the evidence provided can be admissible in court. Eg, A wishes to prove the dying declaration of his father. In order to prove this, first A must prove the death of his father.

Section 105-this section talks about the burden of proof in cases where accused comes with exceptions. According to this section, a person is accused of any offence and there are general exceptions in the case, then it is the burden of the accused to prove those exceptions. The court shall presume that there are no such exceptions present until the accused proves that there are exceptions. Eg, A did a murder, but he was unsound minded at the time for the crime. The burden of proof here lies on A.

Section 106-this section talks about the burden of proving facts which are especially within knowledge. If any fact is especially within the knowledge of the person, the burden of proving that fact is on that person.

In the case of Eshwaraiah And Anr. vs State Of Karnataka (1994), a man and a women were found hiding under the bedroom of a person who died with grievous injuries. Here the burden of proof was on the woman and man that why were hiding there.

There are other sections too which talk about the burden of proof in specific cases like that in section 107 which talks about the burden of proving the death of a person who was alive within 30 years, section 108 talks about the burden of proving person alive who has not been heard for 7 years, section 114 A which states that if women assert that it was non-consensual sex, then the court will honour the claims of the women, etc.

CONCLUSION

The burden of proof simply states that whoever has to make a claim before the court must have sufficient proof to prove it for having the judgement in their favour. For making claims, a person must have sufficient evidence to prove the facts in his favour. And this duty is passed to both the parties as the circumstances are. It strengths the judicial system of our country as it lay down general rules that must be followed by all while bringing a matter to court. This helps to provide justice and equality while giving judgements on the cases.

Introduction

Offer/ Proposal

General and Specific Offers

Invitation to Offer

Conclusion

References

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INTRODUCTION

WHAT IS ‘FORCE MAJEURE’ ?

FORCE MAJEURE AND COVID-19

KEY ASPECTS WHILE INVOKING/DEFENDING FORCE MAJEURE

OTHER FACTORS AFFECTING FORCE MAJEURE CLAUSE

REMEDIES

MITIGATING THE CURRENT CIRCUMSTANCES

TURNING POINT

AROUND THE WORLD

CONCLUSION

REFERENCES

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Keeping of lawful guardian

Age of Minor

Abduction

Essential ingredients of this section are

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Age

Removal From Lawful Guardianship

Means

Consent

Continuity of crime

Punishment

Conclusion

Reference

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Inter-Corporate Loans and Investments

Legal status

Amendments to the Act

Requirements mentioned in Section-186, Indian Companies Act

Summary

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Introduction

How does data shared on Social Media constitute potential Electronic Evidence?

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PROVISIONS AND ADMISSIBILITY

PROCEDURE AND PRECAUTIONS

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

CRITICAL ANALYSIS

CASE REFERENCE

IDENTIFICATION BY PHOTOGRAPH?

IDENTIFICATION BY VOICE?

CONCLUSION

INTRODUCTION

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005

EPIDEMIC DISEASES ACT, 1897

CONSTITUTIONAL PERSPECTIVE

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES

INTRODUCTION

STRICT LIABILITY

ABSOLUTE LIABILITY

THE DIFFERENCE

REFERENCES

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INTRODUCTION

Framing of the Constitution

EVIDENCE

BURDEN OF PROOF

CONCLUSION

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